R v. Secretary of State for the Home Department, Ex parte Abdullah Hannach

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte ABDULLAH HANNACH

CO/223/96

29 January 1996

Queen's Bench Division: Tuckey J

Removal directions-appeal-no other country specified in notice of appeal-respondent contended no right of appeal-appellant's representative so advised-change of representative-appellate authority not informed-no appearance before adjudicator-whether proper for adjudicator to determine appeal in absence of appellant. Immigration Act 1971 s.17(1)(b): Immigration Appeal (Procedure) Rules 1984 r 34(2).

The applicant for judicial review was a citizen of Morocco. The Secretary of State had decided to deport him from the United Kingdom and gave removal directions to Morocco. The applicant appealed against the removal directions but did not specify another country which would receive him. The Secretary of State contended there was no valid appeal to an adjudicator. The applicant's representative on the record was advised of the hearing date. The applicant changed representative: the immigration service was advised but the appellate authorities were not.

When the case was called before the adjudicator there was no appearance before him. He determined the appeal in the absence of the applicant and his representative.

Counsel argued that in the circumstances there had been a breach of natural justice.

Held:

1. There was no breach of natural justice. The appellate authorities properly notified the only representative of which they were aware, of the hearing date. Notice of a change of representative to the immigration service could not be taken as notice to the appellate authorities.

2. In any event the appeal could not have succeeded.

B Richmond for the applicant N Garnham for the respondent

No cases are referred to in the judgment

TUCKEY J: The applicant Abdullah Hannach applies for leave to review a decision of the adjudicator, Mr. Donnell, of 15 November 1995, in which he dismissed an appeal by the applicant from removal directions which had been issued at the end of January 1995.

The facts giving rise to that decision are that the applicant, who is a citizen of Morocco, arrived in this country on 21 January 1995 and was detained at the Harmondsworth Detention Centre, pending determination of his application for asylum. That application was subsequently refused. Removal directions were given for his deportation on 30 January 1995 against which he appealed by a notice which was originally filed on 30 January, but was subsequently amended. The grounds of appeal did not specify a country other than Morocco to which he should be removed. It repeated his fear of returning to Morocco, which was the subject of his asylum application, and said that he had not received notice of intention to deport and that he had left Morocco many years ago.

His representative was shown on the notice of appeal as Yvonne Jacobs of the Immigration Advisory Service at their Ports and Detention Unit in Hounslow. It is to Yvonne Jacobs that the adjudicator, the appeal having been launched, sent a notice, dated 29 March 1995, saying that the respondent had responded to the appeal contending that the appellant was not entitled to appeal because he had not specified another country to which he should be sent. Notice was given that this point would be determined as a preliminary issue on the appeal by the adjudicator.

In due course, notice of hearing was given on 7 November to Yvonne Jacobs by the adjudicator's office. The notice ended by saying:

"In the absence of an appearance at the hearing and failure of a satisfactory explanation for the absence, the adjudicator may in his discretion proceed to determine the appeal on the evidence before him."

The rules permitted this.

There was no appearance by or on behalf of the applicant at the hearing on 15 November. The adjudicator recorded this, the terms of the appeal and the reasons why the respondent Secretary of State said that there were no valid grounds of appeal and concluded that the appeal should be dismissed. In other words, he upheld the Secretary of State's submission based upon the terms of section 17(1) (b) of the Immigration Act 1971. This section says:

"Where directions are given for a person's removal from the United Kingdom either

(b) on a deportation order being made against him;

he may appeal to an adjudicator against the directions on the ground that he ought to be removed-(if at all) to a different country or territory specified by him."

The simple ground on which the appeal was dismissed was, as I have already said, that the applicant did not specify a different country. They were no valid grounds of appeal under the section for the adjudicator to adjudicate upon. He decided the appeal against the applicant on that preliminary issue.

On 19 July 1995 the applicant (who had other solicitors acting for him on his asylum application, which by then had been disposed of) instructed his present solicitors, Rafina & Co. They must have been aware of the pending appeal to the adjudicator. They had written to the Chief Immigration Officer at Harlington on 23 August 1995 expressing concern about the applicant's state of health. They had not informed the adjudicator or the adjudicator's office of their representation, so they did not receive any notice of the hearing. It is the fact that they did not receive notice of the hearing that the applicant complains about in his application for leave to apply for judicial review. It is said (and accepted) that the applicant himself was unaware of the date of the hearing of his appeal; and so he was unable to attend with Rafina & Co to argue his case and this, it is contended, was therefore a breach of natural justice.

Mr. Raymond in his realistic submissions to me accepted that, as the notice of appeal was drawn, the adjudicator would have been bound to reach the decision which he did. In other words, the appeal would have failed, for the reasons the adjudicator gave. However, had the applicant's representatives been aware of the hearing, he says that they might have been able to amend the notice of appeal, they might have been able to put the matter in some way which would have enabled the adjudicator to adjudicate on the merits of the applicant's case although Mr. Raymond was unable to suggest precisely what it is they would have been able to say so as to get their foot in the door, so to speak, in that way. He complains therefore of the fact that the applicant lost the chance of being able to do something at the hearing which would at least have preserved his position and prevented his imminent deportation, as is the position today.

In answer to that, Mr. Garnham, on behalf of the Secretary of State, says two things. First, that there has been no breach of natural justice by this tribunal. They notified the applicant's stated representative and were not aware of the fact that he had other representatives or that his representatives had changed. The notification to the Chief Immigration Officer of Rafina's involvement is not something which can be taken as notice to the adjudicator since that was a notification to, effectively, the Secretary of State, who is respondent to the proceedings. It is settled law that, in the absence of fraud, a notification to a respondent in circumstances such as this does not help the applicant in his assertion that there has been a breach of natural justice. There would only have been a breach of natural justice if the adjudicator himself or his office had been informed of Rafina's involvement and there had then been a subsequent failure to notify them.

Second, Mr. Garnham says that in any event this appeal is bound to fail and so even if there had been a breach of natural justice it is not a case in which leave to review should be given since the failure of natural justice has not resulted in any injustice.

I accept both Mr. Garnham's submissions. It cannot be said that there was a failure of natural justice where the tribunal notified the only representative they were aware of. As Mr. Raymond concedes, the appeal, as drawn, was bound to fail because the grounds did not specify a different country to which the applicant said he should be deported in the event that he should be deported at all. Although I am sympathetic to Mr. Raymond's carefully crafted submissions that something else might have been done at this appeal, I am not persuaded that it could. I do not think that, on the merits, this appeal would have been going anywhere. Therefore, I do not think even, if I were persuaded, which I am not, that there was a breach of natural justice, that this is a case in which I should grant leave. Leave is therefore refused.

Application dismissed

solicitors: Rafina & CO, Sudbury Town, Middlesex; Treasury Solicitor